Last week, the Texas Supreme Court settled a long-running dispute and upheld an appeals court's ruling that claimants can use the Uniform Declaratory Judgments Act to establish a carrier's liability for uninsured/underinsured ("UM/UIM") motorist benefits under the claimant's policy and obtain attorney's fees as well. C.M.W., 53 S.W.3d 877 (Tex. 1998), overruled on other grounds, State Farm Fire & Cas. See, e.g., State Farm Lloyds v. ); State Farm Lloyds Ins. Declaratory Judgment These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. Sec. Sec. The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. The Fifth Circuit reviewed abstention under the Burford and Colorado River doctrines, and concluded that neither was applicable. Advisory opinions are prohibited by both the state and federal constitutions. Under Texas substantive law, attorneys fees may be available to the insured if the insurer has breached its duty to defend or indemnify. In St. Paul Ins. Under state or federal law, declaratory relief is only appropriate when there is an actual case or controversy. & Rem. denied). Co. v. Tandy Corp., 986 F.2d 94, 96 (5th Cir. R. Civ. For our purposes, "litigation" refers to the filing and prosecuting of a real estate-related lawsuit, or defense against one, in the Texas county civil courts at law or the civil district courts. 1996). 4 . See Natl Union Fire Ins. <>>> The purpose of the Declaratory Judgments Act is "to settle and afford relief from uncertainty and. Code Ann. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. *I`Sl,'dpC2\,AMia*K/[ -M @ICPgIw5 Y k]x?4 :D R*NuNK^CXdmS0I,-B Co. v. Wade, 827 S.W.2d 448 (Tex. Texas law does not require the couple to be together for a specific period of time before they can declare themselves to be in a common law marriage. 61 Miscellaneous Litigation , Form 61-15: Petition for Declaratory Judgment; Practice Notes 61.10 Declaratory Judgment Dorsaneo's Texas Litigation Guide KFT 1730.T4 Vol. at 68. <>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> App.Dallas 1992, writ denied) (insurer not collaterally estopped from challenging findings); United States Fire Ins. 37.008 provides that the court may refuse to render a declaratory judgment if the judgment would not terminate the uncertainty or controversy giving rise to the proceeding. In state court, an order to seal discovery requires that the parties jump through a number of additional hoops, but protective orders are still available. <> Despite the complaint allegation rule, Texas courts have always recognized that there are circumstances in which the court must look to extrinsic evidence to determine whether a duty to defend exists. CIV. As a constitutional family rights expert researcher and writer, Sherry helps parents and their attorneys see the possibilities in making constitutional arguments for parental rights as being in the childs best interests. 9 0 obj Under federal law, the Declaratory Judgment Act, itself, does not authorize attorneys fees. . Co. v. Taylor, 706 S.W.2d 352 (Tex. Rule 166a - Summary Judgment. Co., 143 F.3d 192 (5th Cir. Prac. at 332. (not justiciable controversy); Foust v. Ranger Ins. Declaratory Judgment. 1998); see also Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741 (Tex. [i]Since the state requires that you file some sort of lawsuit to protect your rights and time to your child and your property, and most state statutes authorize the use of state power to affect these rights, you should consider using declaratory judgment to establish what process and procedure your court will use to protect you and your child from the harm of a court completely ignoring process and procedure required for fundamental rights. App.Dallas 2001, pet. As amended through January 27, 2023. The Fifth Circuit overruled prior case law to conform with the Supreme Courts ruling. 504-526-4350, 408 St. Peter Street, Suite 510 In older cases, courts allowed broad introduction of extrinsic evidence in a declaratory judgment context. (a) In this section, "state" includes any political subdivision of that state. Sec. Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. There is a contract, and a dispute over the parties rights and obligations under the contract. App.Corpus Christi 2000, no writ). This week our nation's highest court will decide whether to review the 6th Circuit's conclusion that a declaratory judgment of liability starts the statute of . 91a.1 Motion and Grounds. 1992); cf. 4 0 obj 189 0 obj <>stream 1996). Co. v. Cooper Mach. 12 0 obj See Farmers Tex. There are exceptions, however, (1) when conduct estops a party from asserting prior active jurisdiction; (2) where parties are lacking; or (3) where there is lack of intent to prosecute. App.Beaumont 1972), affd other grounds, 496 S.W.2d 552 (Tex. Recent cases discussing the enforceability of policy buy-backs suggest there may be other exceptions in which a statutory insurance requirement renders a claimant an intended beneficiary. Sec. 1983). (b) The declaration may be either affirmative or negative in form and effect, and the declaration has the force and effect of a final judgment or decree. 31 See, e.g., City of Galveston v. Giles, 902 S.W.2d 167 (Tex. C.M.W., 53 S.W.3d 877 (Tex. See United Services Life Ins. 1968) (J. Smith, dissenting). 2 The courts decision has been described as carving out an exception, rather than overruling prior law. Because the Declaratory Judgment Act expressly allows plaintiffs who win declaratory relief to seek injunctive relief either simultaneously or subsequently, any losing defendant will know that the potential for sanctions is only one step away. County Mut. 1995). In Gonzales v. American States Ins. Twenty-Fifth Floor - Plaza of the Americas In addition, in many instances, a protective order will allow broad discovery, without fear of disclosure to the plaintiff. at 313. Court refused this collateral attack on prior judgment by declaration. Co., 975 S.W.2d 329 (Tex. Dallas, TX 75201 See State Farm Mut. See, e.g., Ohio Cas. <> Id. SHORT TITLE, CONSTRUCTION, INTERPRETATION. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. San Antonio, TX 78216 8. Co. v. Griffin, 955 S.W.2d 81, 82-84 (Tex. Co. v. Watson, 876 S.W.2d 145, 149 (Tex. Co., 61 F.3d 389 (5th Cir. App.Amarillo 1997, no pet.). (no right to new trial because of amended petition where suit brought and determined based on prior petition). At issue was a 100-year old agreement regarding the proper boundary line that referred to certain mesquite trees and rock piles, a fence line drawn on a decades-old survey, and the ownership of 90 acres of land. A declaratory judgment is one that simply declares the rights, status, or other legal relations of the parties without ordering anything to be done. The policy provided limits of $100,000 per occurrence and $200,000 in the aggregate. 1998, pet. A developing issue has been the extent to which declaratory relief is available to determine an insurers indemnity obligations, while the underlying suit is pending. Const. POWER OF COURTS TO RENDER JUDGMENT; FORM AND EFFECT. 959, Sec. Contact Us if you have questions.). See Bocquet v. Herring, 972 S.W.2d 19 (Tex. App.Corpus Christi 1982, no writ) (could not consider facts of ownership that conflicted with petition); Calderon v. Mid-Century Indem. Group, Inc., 946 F.Supp. (a) A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. Many of our sample motions are here in electronic form. See Travelers Ins. FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. (c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty. 10 0 obj Civ. 37.003. Co. v. App.Dallas 1998, pet. LEXIS 7088 (Tex. endstream endobj startxref Co., 502 S.W.2d 232 (Tex. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. The application must be by petition to a court having jurisdiction to grant the relief. E.g., Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. Unfortunately, while 38.001, et seq., may allow recovery of attorneys fees by the insured, in a proper case, it provides no basis for recovery of fees by an insurer. However, because family settlement agreements are treated as contracts under Texas law, it is important that all of the parties . Civ. App.Austin 1999, pet. The insurer denied defense based on the liquor liability exclusion and filed a declaratory judgment action. denied) (any judgment on indemnity was advisory and beyond power and jurisdiction of the court); Campbell v. Commercial Standard Ins. Code 6.305 (a) (1)- (2). 1996) (insurer not estopped from litigating employment issue). SUBJECT MATTER OF RELIEF. However, each party must still plead for relief and carry its own burden of proof. See, e.g., State Farm Fire & Cas. Tex. In Gandy, the court broadened the scope of re-litigation, noting that in no event, however, is a judgment for plaintiff against defendant rendered without a fully adversarial trial, binding on defendants insurer . As long as both parties agree to the three elements listed in Section 2.401, they meet the requirements of a common law marriage. Sec. Acts 2007, 80th Leg., R.S., Ch. The firm's new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112. . If the discovery is limited, or poorly conducted, or does not address the coverage issues, however, the insurer may seek additional testimony and evidence. K-yXHMKS mmgOT}|aMz0. "Since its inception, the Declaratory Judgment Act has been understood to confer on federal Civ. "gj6P'pn.g_9z# ?V#yof.j,^4{%y^LJ_z|0 eivLnBE.orQevfwe^_d \2P4^Gy-ts}] ;|^QRg-d^yX^OeGE?kP0+]kw/k}m+TssVg4Pv. 955 S.W.2d at 84 (construing Tex. 6 0 obj 3 0 obj Sec.A37.003.AAPOWER OF COURTS TO RENDER JUDGMENT; FORM AND EFFECT. (b) In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard. Rule 91a - Dismissal of Baseless Causes of Action. See Hartford Ins. A marriage might be void for other reasons, but not because the spouses are of the same sex. The petition in the underlying suit was amended, however, and all references to alcohol were deleted. 1998) (whether release was sudden and accidental); Western Heritage Ins. 37.009. 1998, no pet.). COSTS. & Ind. The district court dismissed the declaratory action on the defendants motion based on 28 U.S.C. CODE ANN. denied) (disallowing evidence of workers compensation payments to establish employment). 1989, no writ); In re Fontenot, 13 S.W.3d 111 (Tex. c) The court may grant summary judgment as to liability only and leave damages for the jury, as appropriate. R. CIV. Indemnity, on the other hand, is based on actual facts and should always be subject to extrinsic evidence. denied, 511 U.S. 1032 (1994). App.Austin, Oct. 2, 2003, no pet. PARTIES. Where Can I Get More Information and Training? ); Rice v. Alamo Rent-A-Car, Inc., 987 S.W.2d 231 (Tex. P. 301; Logan v. Mullis, 686 S.W.2d 605, 609 (Tex . Rule 56(a). PRAC. Co., 628 S.W.2d 184 (Tex. <> Federal courts have broad discretion as to whether to retain jurisdiction or dismiss declaratory judgment actions. 2201, and further provides for a jury trial. 2005); In re Marriage of Byrne, 179 Ill.App.3d 944 (1st Dist. The Declaratory Judgment Act itself provides that a "declaration shall have the force and effect of a final judgment or decree," 28 U. S. C. 2201; eminent authority anticipated that declaratory judgments would be res judicata, E. Borchard, Declaratory Judgments 10-11 (2d ed. There are exceptions, of course. An insurer should not be held to have waived its right to litigate coverage by defending under reservation of rights, or by delay in filing a declaratory judgment action. 2 0 obj Co., 316 U.S. 491 (1942); Wilton, 515 U.S. 277. insecurity with respect to rights, status, and other legal relations.". Now you can hire experts to teach your court that you are asserting the protections of your parental rights[vii]. of Trans., 999 S.W.2d 881, 883 (Tex. App.Beaumont 1999, pet. App.Waco 1943, no writ); Superior Ins. Mut. As amended through January 27, 2023. Co. v. Trejo, 39 F.3d 585, 590 (5th Cir. This article is designed to acquaint investors with basic rules and procedures involved in Texas litigation. 1271 (N.D. Tex. App.Houston [1st Dist.] Ins. 1998). 2023 Thompson, Coe, Cousins & Irons, LLP. See, e.g., State Farm Fire & Cas. (because claimant could not bring suit, she had no right to intervene); see, e.g., Graciela v. Tagle, 946 S.W.2d 504 (Tex. Co. v. Patriot Sec., Inc., 926 F.Supp. App.Houston [1st Dist.] 3. 1995), the court held a minor, whose interests were affected, was properly made a party to a declaratory judgment action, and was bound by the judgment where the minors mother answered, as next friend, and a guardian ad litem was appointed. POWER OF COURTS TO RENDER JUDGMENT; FORM AND EFFECT. (a) A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. The Western Heritage case epitomizes the argument for use of extrinsic evidence. C.M.W., 53 S.W.3d 877 (Tex. Where the insurer is providing a defense, it is a party to the attorney-client privilege, and can share in communications between the insured and defense counsel, without waiver. Ins. Ins. LEXIS 1736 (Tex. The court then noted the special concerns applicable in declaratory actions. Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. %PDF-1.5 In re Houston Specialty Insurance Co., 569 S.W.3d 138 (Tex. denied) (judgment of negligence in underlying case did not establish that negligent acts caused bodily injury, and did not preclude insurer from establishing intentional conduct); Deering Mgmt. Tex. 1994). endobj Ins. 1996). Sept. 1, 1985. Co. v. Truckin USA, 122 F.3d 270, 272-73 (5th Cir. A trial court has discretion to enter declaratory judgment if it will serve a useful purpose or will terminate the controversy between the parties. Id. ydXOEp Pzz2 -Ia5D(eUE02Xd#zG5 ;}srmVY9c~Vqz6#tUy/`ck$cVpxKCoo,}o{T#@TQ]%5|@Rtx~K9jptm> oL CODE provides, in subpart (a), that: When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties. [iii] Ibid Uniform Declaratory Judgments Act, [iv]Ibid Uniform Declaratory Judgments Act, [v] Ibid Uniform Declaratory Judgments Act, [vi] Ibid Uniform Declaratory Judgments Act. 1968). e) Summary judgment is available in declaratory judgment actions. Tex. Concho counterclaimed for breach of contract and a declaratory judgment premised on the signed 2008 letter. See, e.g., Sylvester v. Watkins, 538 S.W.2d 827 (Tex. 45 . 1991). She enables parents and attorneys to assert rights and convert the constitutional principles into everyday practice and natural language. A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of the estate of a decedent, an infant, mentally incapacitated person, or insolvent may have a declaration of rights or legal relations in respect to the trust or estate: (1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; (2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; (3) to determine any question arising in the administration of the trust or estate, including questions of construction of wills and other writings; or. Co. v. Hood, 895 F.Supp. Civ. Because the pleadings did not address a fact essential to determining coverage, the court allowed extrinsic evidence. Where a judgment has been entered in the underlying case, and the insurer has refused indemnity, it may also be that declaratory relief is inappropriate, because a cause of action for breach of contract has ripened. 2d 719 (S.D. Ins. When you get the motions and read the second book, you will get the most out of this class. Acts 1985, 69th Leg., ch. Declaratory Judgment Construing Will on Westlaw. The underlying liability suit arose from an accident in which one defendant, while intoxicated, hit the plaintiffs vehicle, killing their daughter. (a) A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. River Entertainment was joined because it owned Pepes where the defendant imbibed. 8 0 obj Civ. endobj Ins. Since the duty to defend is based solely on the live pleadings, a declaratory judgment is arguably based only on the pleading in effect, and is not determinative as to any subsequent amended or supplemental pleading.
